A BILL to repeal §16-2F-5 of the Code of West Virginia, 1931, as
amended; and to amend and reenact §16-2F-2, §16-2F-3,
§16-2F-4, §16-2F-6, §16-2F-8 and §16-2F-9; and to amend said
code by adding thereto a new section, designated §16-2F-8a,
all relating to parental notification requirements for
obtaining abortions by unemancipated minors; defining terms;
requiring proof of age prior to an abortion; providing for
substitute notification in certain instances; modifying
physician reporting requirements; providing for criminal
penalties; providing for preservation of fetal tissue in
instances of sexual assault; and providing for severability.

Be it enacted by the Legislature of West Virginia:

That §16-2F-5 of the Code of West Virginia, 1931, as amended,
be repealed; and that §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-6,
§16-2F-8 and §16-2F-9 of said code be amended and reenacted; and
that said code be amended by adding thereto a new section,
designated §16-2F-8a, all to read as follows:

ARTICLE 2F. PARENTAL NOTIFICATION OF ABORTIONS PERFORMED ON
UNEMANCIPATED MINORS.

§16-2F-2. Definitions.

For purposes of this article, unless the context in which used
clearly requires otherwise:

(1) "Minor" means any person under the age of eighteen years
who has not graduated from high school.

(2) "Unemancipated minor" means any minor who is neither
married nor who has been emancipated as pursuant to applicable
federal law or as provided by section twenty-seven, article seven,
chapter forty-nine of this code.

(3) "Actual notice" means the giving of notice directly, in
person or by telephone.

(4) "Constructive notice" means the giving of notice by
certified mail to the last known address of the parents or legal
guardian, return receipt requested.

(5) "Abortion" means the use of any instrument, medicine, drug
or any other substance or device with intent to terminate the
pregnancy of a female known to be pregnant and with intent to cause
the expulsion of a fetus other than by live birth: Provided, That
nothing in this article shall be construed so as to prevent the
prescription, sale or transfer of intrauterine contraceptive
devices or other contraceptive devices or other generally medically
accepted contraceptive devices, instruments, medicines or drugs for
a female who is not known to be pregnant and for whom such
contraceptive devices, instruments, medicines or drugs were
prescribed by a physician solely for contraceptive purposes and not
for the purpose of inducing or causing the termination of a known
pregnancy.

(1) "Abortion" means the use or prescription of any
instrument, medicine, drug or any other substance or device to
intentionally terminate the pregnancy of a female known to be
pregnant with knowledge that the termination by those means will,
with reasonable likelihood, cause the expulsion of fetus other than
by live birth: Provided, That nothing in this article may be
construed so as to prevent the prescription, sale or transfer of
intrauterine contraceptive devices or other contraceptive devices
or other generally medically accepted contraceptive devices,
instruments, medicines or drugs for a female who is not known to be
pregnant and for whom the contraceptive devices, instruments,
medicines or drugs were prescribed by a physician solely for
contraceptive purposes and not for the purpose of inducing or
causing the termination of a known pregnancy.

(2) "Actual notice" means the giving of notice directly, in
person.

(3) "Constructive notice" means the giving of notice by
certified mail, return receipt requested, to the last known address
of the parents or legal guardian.

(4) “Medical emergency” means any condition that a reasonably
prudent physician with knowledge of the case and treatment
possibilities with respect to the medical conditions involved would
determine that a condition exists that would complicate the medical
condition of a pregnant female to necessitate the immediate
termination of her pregnancy to avert her death or for which delay
will create a serious risk of substantial irreversible physical
impairment of a major bodily function.

(5) "Minor" means any person under the age of eighteen years.

(6) “Parent” means one parent of the pregnant female, or
guardian or curator if the pregnant female has one.

(7) "Unemancipated minor" means any minor who is neither
married nor who has been emancipated as pursuant to applicable
federal law or as provided by section twenty-seven, article seven,
chapter forty-nine.

§16-2F-3. Parental notification required for abortions performed
on unemancipated minors; waiver; notice to minor of
right of petition to circuit court; minor to be
referred for counseling.

(a) No physician may perform an abortion upon an unemancipated
minor unless such physician has given or caused to be given at
least twenty-four hours actual notice to one of the parents or to
the legal guardian of the pregnant minor of his intention to
perform the abortion, or, if the parent or guardian cannot be found
and notified after a reasonable effort to do so, without first
having given at least forty- eight hours constructive notice
computed from the time of mailing to the parent or to the legal
guardian of the minor: Provided, That prior to giving the
notification required by this section, the physician shall advise
the unemancipated minor of the right of petition to the circuit
court for waiver of notification: Provided, however, That any such
notification may be waived by a duly acknowledged writing signed by
a parent or the guardian of the minor.

(b) Upon notification being given to any parent or to the
legal guardian of such pregnant minor, the physician shall refer
such pregnant minor to a counselor or caseworker of any church or
school or of the department of human services or of any other
comparable agency for the purpose of arranging or accompanying such
pregnant minor in consultation with her parents. Such counselor
shall thereafter be authorized to monitor the circumstances and the
continued relationship of and between such minor and her parents.

(c) Parental notification required by subsection (a) of this
section may be waived by a physician, other than the physician who
is to perform the abortion, if such other physician finds that the
minor is mature enough to make the abortion decision independently
or that notification would not be in the minor's best interest:
Provided, That such other physician shall not be associated
professionally or financially with the physician proposing to
perform the abortion.

§16-2F-3. Required proof of age prior to performing an abortion.

(a) A physician may not perform an abortion on a pregnant
female unless:

(1) The physician, or his or her designee, has obtained proof
of age which a reasonably prudent person would think demonstrates
the female is eighteen years of age or older or, proof that a
reasonable and prudent person would think demonstrates that the
minor is emancipated; or

(2) The physician has complied with section four of this
article.

(b) If the physician, or his or her designee, obtains proof of
the age or emancipation of the female as provided in subdivision
(1) of subsection (a) of this section, the physician, or his or her
designee, shall execute and sign for inclusion in the female's
medical record an affidavit stating that, to the best information
and belief, a reasonable and prudent person under similar
circumstances would have relied upon the information presented as
sufficient evidence of the identity of the person seeking the
abortion and that she is not a minor or that she is an emancipated
minor.

(c) To the extent applicable, the physician shall keep a copy
in the female patient's file of all affidavits, proof of age and of
any court order provided in this section for seven years following
the date of the abortion or, for five years after the minor reaches
the age of majority, whichever is longer.

§16-2F-4. Waiver of notification; petition to circuit court;
contents of petition; duties of Attorney General
and circuit clerk; confidentiality of proceedings;
appointment of counsel and limitation of
compensation; findings required to be made by
court; petition to supreme court; waiver of certain
fees.

(a) A minor who objects to such notice being given to her
parent or legal guardian may petition for a waiver of such notice
to the circuit court of the county in which the minor resides or in
which the abortion is to be performed, or to the judge of either of
such courts. Such minor may so petition and proceed in her own
right or, at her option, by a next friend.

(b) Such petition need not be made in any specific form and
shall be sufficient if it fairly sets forth the facts and
circumstances of the matter, but shall contain the following
information:

(i) The age of the petitioner and her educational level;

(ii) The county and state in which she resides;

(iii) A brief statement of petitioner's reason or reasons for
the desired waiver of notification of the parent or guardian of
such minor petitioner.

No such petition shall be dismissed nor shall any hearing
thereon be refused because of any defect in the form of the
petition.

(c) Upon the effective date of this article or as soon
thereafter as may be, the Attorney General shall prepare suggested
form petitions and accompanying instructions and shall make the
same available to the several clerks of the circuit courts. Such
clerks shall see that a sufficient number of such suggested form
petitions and instructions are available in the clerk's office for
the use of any person desiring to use the same for the purposes of
this section.

(d) All proceedings held pursuant to this article shall be
confidential and the court shall conduct all such proceedings in
camera. The court shall inform the minor petitioner of her right
to be represented by counsel and that if she is without the
requisite funds to retain the services of an attorney, that the
court will appoint an attorney to represent her interest in the
matter. If the minor petitioner desires the services of an
attorney, an attorney shall be appointed to represent such minor
petitioner, if she advises the court under oath or affidavit that
she is financially unable to retain counsel. Any attorney
appointed to represent such minor petitioner shall be appointed and
paid for her services pursuant to the provisions of article
twenty-one, chapter twenty-nine of this code: Provided, That the
pay to any such attorney pursuant to such appointment shall not
exceed the sum of one hundred dollars.

(e) The court shall conduct a hearing upon the petition
without delay, but in no event shall the delay exceed the next
succeeding judicial day, and the court shall render its decision
immediately upon its submission and, in any event, an order
reflecting the findings of fact and conclusions of law reached by
the court and its judgement shall be endorsed by the judge thereof
not later than twenty-four hours following such submission and
shall be forthwith entered of record by the clerk of the court.
All testimony, documents and other evidence presented to the court,
as well as the petition and any orders entered thereon and all
records of whatsoever nature and kind relating to the matter shall
be sealed by the clerk and shall not be opened to any person except
upon order of the court and, then, only upon good cause being shown
therefor. A separate order book for the purposes of this article
shall be maintained by such clerk and shall likewise be sealed and
not open to inspection by any person save upon order of the court
for good cause shown.

(f) Notice as required by section three of this article shall
be ordered waived by the court if the court finds either:

(1) That the minor petitioner is mature and well informed
sufficiently to make the decision to proceed with the abortion
independently and without the notification or involvement of her
parent or legal guardian, or

(2) That notification to the person or persons to whom such
notification would otherwise be required would not be in the best
interest of the minor petitioner.

(g) If or when the circuit court, or the judge thereof, shall
refuse to order the waiver of the notification required by section
three of this article, a copy of the petition and all orders
entered in the matter and all other documents and papers submitted
to the circuit court, may be presented to the Supreme Court of
Appeals, or to any justice thereof if such court then be in
vacation, and such court or justice if deemed proper, may thereupon
order the waiver of notification otherwise required by section
three of this article. The Supreme Court of Appeals or justice
thereof shall hear and decide the matter without delay and shall
enter such orders as such court or justice may deem appropriate.

(h) If either the circuit court or the Supreme Court of
Appeals, or any judge or justice thereof if either of such courts
be then in vacation, shall order a waiver of the notification
required by section three of this article, any physician to whom a
certified copy of said order shall be presented may proceed to
perform the abortion to the same extent as if such physician were
in compliance with the provisions of said section three and,
notwithstanding the fact that no notification is given to either
the parent or legal guardian of any such unemancipated minor, any
such physician shall not be subject to the penalty provisions which
may be prescribed by this article for such failure of notification.

(i) No filing fees may be required of any minor who avails
herself of any of the procedures provided by this section.

(a) (1) A physician may not perform an abortion upon an
unemancipated minor unless notice is given to the parent of the
unemancipated pregnant minor prior to a physician performing an
abortion. Notice shall be given at least forty-eight hours prior
to performing the procedure and a copy of the notice shall be kept
in the minor's medical records for at least seven years or, for
five years after she reaches the age of majority, whichever is
longer. A parent may receive:(A) Actual notice and may waive the forty-eight-hour notice
period: Provided, That this waiver may not be construed to waive
any period mandated by section two, article two-i, chapter sixteen;
or(B) Constructive notice sent via the United States post office
to the parent's last known address, restricted delivery, return
receipt requested. The address of the parent must be sufficiently
complete and accurate so that a reasonable and prudent person,
under similar circumstances, would have relied upon it as
sufficient evidence that the parent resides at that address. The
forty-eight-hour time period for written notice shall commence to
run at twelve noon on the next day on which regular mail delivery
takes place, subsequent to the date of the mailing.(2) Prior to performing an abortion, a physician, or his or
her designee, shall obtain from the parent to whom actual notice is
given, proof of identification that a reasonable and prudent
person, under similar circumstances, would have relied upon as
sufficient evidence that the person is the parent of the minor
female. A copy of this information or specific details concerning
the proof provided shall be included in the minor's medical records
for at least seven years or, for five years after the minor reaches
the age of majority, whichever is longer.(3) The physician performing the abortion, or his or her
designee, shall execute an affidavit certifying the information
presented by the female of her age or emancipation was so complete
and accurate that a reasonable and prudent person, under similar
circumstances would have relied upon the information as sufficient
evidence of her age or emancipation. This affidavit shall be
included in the female's medical records for at least seven years
or, for five years after the minor reaches the age of majority,
whichever is longer.(4) The physician performing the abortion, or his or her
designee, shall execute an affidavit certifying the information
presented by the parent receiving actual notice was sufficient
evidence of her identity which a reasonable and prudent person,
under similar circumstances, would have relied upon as sufficient
evidence that the person is the parent of the minor. This
affidavit shall be included in the minor's medical records for at
least seven years or, for five years after the minor reaches the
age of majority, whichever is longer.(5) The physician performing the abortion, or his or her
designee, shall execute an affidavit certifying the information
provided by the minor concerning the last known address of the
parent for constructive notice was complete and accurate that a
reasonable and prudent person, under similar circumstances, would
have relied upon as sufficient evidence of the parent's last known
address. This affidavit shall be included in the minor's medical
records and kept for at least seven years or until five years after
the minor reaches the age of majority, whichever is longer.(b) Notice to the parent is not required if:(1) The pregnant minor female declares that she is a victim of
sexual abuse, neglect, or physical abuse as defined in articles
eight-b and eight-d, chapter sixty-one and the attending physician
reports the sexual abuse, neglect, or physical abuse in accordance
with section two, article six-a, chapter forty-nine. In these
circumstances, the Department of Health and Human Resources and,
any judge supervising proceedings in which information concerning
the Department of Health and Human Resources report or
investigation may be presented or referred, shall maintain the
confidentiality of the fact that she has sought or obtained an
abortion and shall take all necessary steps to ensure that this
information is not revealed to her parents. The physician is
required to describe in writing the sexual abuse, physical abuse or
neglect on a form provided by the Department of Health and Human
Resources. A copy of this form shall be maintained in the minor’s
medical records for at least seven years or for five years after
she reaches the age of majority, whichever is longer; or

(2) The physician performing an abortion concludes a medical
emergency exists. The physician is required to certify to the
Department of Health and Human Resources, on a form provided by the
department, the medical justification supporting the physician's
judgment that a medical emergency existed. A copy of this form
shall be maintained in the minor's medical records for at least
seven years or for five years after she reaches the age of
majority, whichever is longer.

(c) The physician shall keep a copy of the medical records of
a minor for at least seven years following the date of the abortion
or for five years past the minor's age of majority, whichever is
greater.(d) The attending physician or the physician's designee shall
verbally inform the parent within twenty-four hours after the
performance of a medical emergency abortion, that a medical
emergency abortion was performed on the unemancipated minor and
shall send a written notice, in the manner described in paragraph
(B), subdivision (1), subsection (a) of this section of the
performed medical emergency abortion.

(e) The Department of Health and Human Resources shall propose
legislative rules in accordance with the provisions of article
three, chapter twenty-nine-a to propose all forms, affidavits and
certifications required by this section.

§16-2F-6. Reporting requirements for physicians.

(a) Any physician performing an abortion upon an unemancipated
minor shall provide the Department of Health and Human Resources a
written report of the procedure within thirty days after having
performed the abortion. Nothing in this report may personally
identify any individual female. The Department of Health and Human
Resources shall provide reporting forms for this purpose to all
physicians and public health facilities required to be licensed
pursuant to article five-b of this chapter. The following
information, in addition to any other information which may be
required by the Department of Health and Human Resources, regarding
the minor receiving the abortion shall be included in suchthe
reporting form:

(1) Age;

(2) Educational level;

(3) Previous pregnancies;

(4) Previous live births;

(5) Previous abortions;

(6) Complications, if any, of the abortion being reported;
and

(7) Reason for waiver of notification of the minor's parent
or guardian, if such notice was waived; and

(8)(7) The city and county in which the abortion was
performed.

Any such report shall not contain the name, address or other
information by which the minor receiving the abortion may be
identified.

(b) Any physician performing abortions upon unemancipated
minors shall provide the Department of Health and Human Resources
a written report containing the information listed in this
subsection. Nothing in the report may personally identify any
individual female. The following information, in addition to any
other information which may be required by the Department of Health
and Human Resources, regarding the minor receiving the abortion
shall be included:(1) The number of females whose parents were notified pursuant
to section four of this article and the manner in which they were
notified;

(2) The number of females who, to the best of the reporting
physician's information and belief, went on to obtain the abortion;(3) The number of females upon whom the physician performed an
abortion without providing the notice described in section four of
this article, including the number who were emancipated minors;(4) The number of abortions performed upon a female by the
physician after receiving judicial authorization to do so without
parental notification;(5) The number of abortions performed for medical emergency
reasons; and

(6) The number of abortions performed on pregnant minors who
declared they were a victim of sexual assault or abuse, neglect or
physical abuse.(c) The Department of Health and Human Resources may propose
legislative rules in accordance with the provisions of article
three, chapter twenty-nine-a to develop reporting forms as
described in this section. The rules shall ensure that copies of
the reporting forms, described in this section, together with a
reprint of this article, are provided:(1) By December 1 of every year, other than the calendar year
in which forms are distributed in accordance with this section, to
all physicians licensed to practice in this state; and(2) To each physician who subsequently becomes newly licensed
to practice in this state at the same time as official notification
to that physician that the physician is so licensed.(d) By February 28 of each year following a calendar year in
any part of which this article was in effect, each physician or his
or her designee who provided the notice described in section four
of this article and any physician who knowingly performed an
abortion upon a pregnant minor or upon a female for whom a guardian
or curator had been appointed pursuant to applicable federal law or
as provided by sections three and four, article ten, chapter
forty-four because of a finding of incompetency of the pregnant
minor during the previous calendar year shall submit to the
Department of Health and Human Resources a copy of the forms
described in this section with the requested data entered
accurately and completely. The information included in the reports
shall not personally identify any individual female.(e) Reports that are not submitted within thirty days
following the due date are subject to a late fee of $500 for the
first month and $1,000 for each additional thirty-day period or
portion of a thirty-day period they are overdue. Any physician
required to report in accordance with this section who has not
submitted a report, or has submitted only an incomplete report,
more than one year following the due date, may, in an action
brought by the Department of Health and Human Resources, be
directed by a circuit court of the county in which the physician
resides or practices to submit a complete report within a period
stated by court order or be subject to sanctions for civil contempt.(f) By June 30 of each year, the Department of Health and
Human Resources shall issue a public report providing statistics
for the previous calendar year compiled from all of the reports
covering that year submitted in accordance with this article. The
report shall also include statistics which shall be obtained from
the Supreme Court of Appeals giving the total number of petitions
or motions filed under subsection (a), section five of this
article, including the number in which the court appointed a
guardian ad litem, the number in which the court appointed counsel,
the number in which the family court judge issued an order
authorizing an abortion without notification, the number in which
the family court judge denied an order, the number of denials from
which an appeal was filed, the number of appeals that resulted in
the denials being affirmed and the number of appeals that resulted
in reversals of denials. Each report shall provide the statistics
from late or corrected reports for all previous calendar years.
The information included in the public reports shall not personally
identify any individual female.(g) If the Department of Health and Human Resources fails to
issue the public report required by subsection (f) of this section,
any group of ten or more citizens of this state may seek an
injunction in the circuit court of Kanawha County against the
Secretary of the Department of Health and Human Resources requiring
that a complete report be issued within a period stated by court
order.

(h) The Department of Health and Human Resources may propose
rules for legislative approval pursuant to section five, article
three, chapter twenty-nine-a to alter the dates established by
subdivision (1), subsection (b) of this section or subsection (c)
or (f) of this section or consolidate the forms or reports to
achieve administrative convenience or fiscal savings or to reduce
the burden of reporting requirements, so long as reporting forms
are sent to all licensed physicians in the state at least once
every year and the report described in subsection (f) of this
section is issued at least once every year.

§16-2F-8. Penalties.

Any person who knowingly performs an abortion upon an
unemancipated minor in violation of this article or who knowingly
fails to conform to any requirement of this article shall be guilty
of a misdemeanor, and, upon conviction thereof, shall be fined not
less than five hundred dollars nor more than one thousand dollars
or imprisoned in the county jail not more than thirty days, or both
fined and imprisoned.

§16-2F-8. Penalties.

(a) A person who uses a false governmental record or makes a
false representation or statement in order to obtain an abortion
for a minor or who signs an affidavit or certification required by
section three or four of this article that is false is guilty of
false swearing as defined in section two, article five of chapter
sixty-one.(b) Any person who uses a false governmental record or makes
a false representation or statement in order to obtain an abortion
for a minor or who signs an affidavit or certification required by
section three or four of this article that is false is civilly
liable to the person or persons entitled to receive parental notice
for pain and suffering and any subsequent costs of medical or
psychiatric treatment a minor might require because of
complications resulting from the abortion.(c) Any person who knowingly performs an abortion upon an
unemancipated minor in violation of this article or who knowingly
fails to conform to any requirement of this article is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $500 nor more than $1,000 or confined in jail not more than
one year, or both fined and confined.

(d) Any person who knowingly, recklessly or negligently
performs an abortion on an unemancipated minor in violation of this
article is civilly liable to the person or persons entitled to
receive parental notice for pain and suffering and any subsequent
costs of medical or psychiatric treatment a minor might require
because of complications resulting from the abortion.(e) It is not a defense to a claim brought pursuant to this
section that the minor gave informed and voluntary consent.(f) An unemancipated minor does not have capacity to consent
to any action that violates this article.§16-2F-8a. Fetal tissue preservation.

(a) Any physician who performs an abortion on a minor who has
alleged sexual assault pursuant to articles eight-b and eight-d of
chapter sixty-one-e, shall preserve, in accordance to the rules of
the West Virginia State Police Crime Lab, the tissue extracted
during the abortion. The physician shall submit the tissue to the
State Police Child Abuse and Neglect Investigation Unit for
investigation.

(b) Failure of a physician to comply with these provisions
shall constitute unprofessional conduct.

§16-2F-9. Severability.

The provisions of subsection (cc), section ten, article two,
chapter two of this code shall apply to the provisions of this
article to the same extent as if said subsection were set forth in
extenso herein.

§16-2F-9. Severability.

If any one or more provision, section, subsection, sentence,
clause, phrase or word of this article or the application thereof
to any person or circumstance is found to be unconstitutional, the
same is hereby declared to be severable and the balance of this
article shall remain effective notwithstanding the provision,
section, subsection, sentence, clause, phrase or word of this
article or the application thereof to any person or circumstance
held to be unconstitutional. The Legislature hereby declares that
it would have passed this article, and each provision, section,
subsection, sentence, clause, phrase or word thereof, irrespective
of the fact any one or more provision, section, subsection,
sentence, clause, phrase or word be declared unconstitutional.

NOTE: The purpose of this bill is relative to parental
involvement in the minor’s decision to obtain an abortion. The
bill requires physicians to obtain proof of age prior to the
performance of an abortion on a pregnant woman. The bill provides
for a constructive notice to parents of minors, and maintains
information for a specified period in the minor’s medical file.
The bill creates penalties. The bill also provides for collection
of fetal tissue in instances when the minor alleges sexual assault.
Finally, the bill mandates specific reporting requirements.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.

§16-2F-8a is new; therefore, strike-throughs and underscoring
have been omitted.